Modog Pty Limited v Leichhardt MC - [2006] NSWLEC 489

Land and Environment Court

of New South Wales

CITATION: Modog Pty Limited v Leichhardt MC [2006] NSWLEC 489

PARTIES:
APPLICANT
Modog Pty Limited
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 11286 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- partial demolition, alterations and additions to an existing two-storey industrial building, part three and part four storey residential flat building, building conversion, alterations and reuse, development standards, floor space ratio, landscaped area, building envelope, private open space, solar access, residential amenity and streetscape.

LEGISLATION CITED: State Environmental Planning Policy No1 - Development Standards
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000

DATES OF HEARING: 19/07/2006 and 20/07/2006

DATE OF JUDGMENT:
08/11/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Newport, barrister
RESPONDENT
Mr J. Ailing, SC.
Solicitors: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

11 August 2005

11286 of 2005 Modog Pty Limited v Leichhardt Municipal Council
JUDGMENT

Introduction

1 This appeal relates to development application No D/2005/428 which is for the partial demolition and alterations and additions to an existing two-storey industrial building comprising conversion to a part three and part four storey residential flat building containing 28 dwellings, with an associated basement car park at 17-25 Beeson Street Leichhardt. Included in the proposal is the retention of an existing single storey dwelling. Strata subdivision of the entire development is also proposed.

2 The irregular shaped site is located on the northern side of Beeson Street at its western end, adjoining a railway reserve to the west, which in turn, adjoins the Hawthorne Canal. It comprises Lots 10 and 11 in DP 13227 and Lot A in DP 314477. It has an area of 2,076 sq m with a frontage to Beeson Street of about 40 m. It generally slopes from the street towards its rear boundary with the highest point of the site being the southeast corner and the lowest point being the northwest corner.

3 Beeson Street is mainly developed with older style single storey dwelling houses although there is a more recent townhouse development at the corner of Tebbutt Street. Adjoining site to the rear in Kegworth Street are the rear yards of eight single storey dwelling houses. The railway line in the adjoining reserve is an infrequently used goods line. The Hawthorne Canal provides for stormwater drainage.

Statutory controls

4 The site is zoned Residential under Leichhardt Local Environmental Plan 2000 ("LEP 2000") and residential development is permissible with development consent.

5 The site is not included in a conservation area but is located within the vicinity, (ie opposite) two cottages, which are listed heritage items, and hence, cl 16(7) of LEP 2000 is applicable. This clause requires that an assessment be made as to the effect of the carrying out of the development on the heritage significance of these items and their settings.

6 Clause 19(2) and (3) of LEP 2000 contain applicable development standards comprising a maximum floor space ratio of 0.5:1 and a minimum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 489
Decision Date: 11/08/2006

CaseChat Overview and Summary

The applicant, Modog Pty Limited, sought approval for a development application that involved the partial demolition, alterations, and additions to an existing two-storey industrial building in Leichhardt, Sydney, to convert it into a three and four-storey residential flat building with 28 dwellings, an associated basement car park, and the utilization of an existing single-storey dwelling. The Leichhardt Municipal Council opposed the application on various grounds, including non-compliance with development standards and adverse impacts on the surrounding environment and heritage items. The case before the Land and Environment Court of New South Wales was to determine whether the applicant's proposal met the criteria for approval under clause 19(5) of the Leichhardt Local Environmental Plan 2000, and if not, whether the objections raised by the council regarding the floor space ratio and landscaped area development standards should be upheld.

The court found that the proposal did not meet the stringent tests outlined in clause 19(5) for building conversion and adaptation, particularly in terms of retaining most of the structure of the existing building, containing any additional floorspace within the envelope of the existing building, and providing adequate solar access and privacy for the intended occupants and neighbouring properties. The court also determined that the objections raised by the council regarding the floor space ratio and landscaped area development standards were well-founded, as the proposal's non-compliances were excessive and unjustified despite some public benefits that would result from adaptive re-use.

Based on these findings, the court dismissed the appeal and refused development consent for the proposed development, stating that the considerable non-compliances with the development standards and failure to meet the applicable objectives made the proposal unacceptable. The court also noted that the benefits of adaptive re-use, while acknowledged, were not sufficient to overcome the fundamental flaws in the proposal. The final orders of the court were to dismiss the appeal and refuse development consent for the proposed development.

Orders